This article, by Elizabeth Brubaker, first appeared in the Winnipeg Free Press on March 24, 2015.
On Wednesday, Winnipeg city council will reveal whether a system of hearings designed to protect property owners from unfair or unreasonable expropriation is a sham.
Council must decide how much property it will expropriate for two projects. The first involves plans to widen and extend two streets in the Polo Park area. The city lacks the land it needs, having inadvertently sold too much land to developers in 2013. To extricate itself from this mess of its own making, rather than taking back the required land, the city decided to realign the proposed route and expropriate 13 parcels from smaller, less powerful property owners.
Eight owners objected to the expropriation. One objector is Dan Iwanchuk, owner of Canada Auto. The city intends to expropriate seven of his 16 parking spaces. Parking has always been in short supply at Canada Auto – the city once resisted giving it an occupancy permit due to inadequate parking – and losing seven spaces would destroy the business.
Iwanchuk insists that if the city is going to expropriate such an important part of his property, it should take the entire site, allowing him to relocate. Another objector is Oxbow Holdings, the owner of a 20,000-square-foot retail building that would lose 20 of its 32 parking spaces. According to a city bylaw, a property of its size should have parking for 72 vehicles. Oxbow worries it won’t be able to find tenants if it can’t provide parking.
These and other owners requested a public hearing, as provided for in Manitoba’s Expropriation Act. At the five-day hearing, provincially appointed inquiry officer George Ulyatt probed whether the intended expropriation was fair and reasonably necessary.
Ulyatt determined the expropriation of a portion of Canada Auto would render the business inoperable, concluding, “It would be patently unfair to approve a course of action that would effectively destroy an existing and long-term business.” He likewise found that partial expropriation would destroy the Oxbow property – taking 20 parking spaces “effectively eliminates it as a viable commercial building.”
Ulyatt recommended that in fairness to the owners, the whole of both properties should be expropriated.
Winnipeg’s public service balked. Concerned that full takings would increase land-acquisition costs, create liabilities regarding the maintenance of the buildings on the properties, and slow down the project, it recommended that council not endorse the inquiry officer’s recommendations.
The city’s property and development committee concurred. Committee chairman John Orlikow said he respectfully disagreed with the inquiry officer and expected to proceed with the expropriations. Coun. Orlikow explained, it “is definitely not in the best interest for the city to take over property that we don’t need.” The finance committee and the executive policy committee concurred.
This won’t be the only inquiry officer’s report on council’s Wednesday agenda. The city will also consider a recommendation concerning an expropriation from Shindico Realty.
In 2012, Shindico built a fire hall on Taylor Avenue, on land owned by a related company. The owner and the city were unable to agree on a price for the land, or on how much land the fire hall required. Among other issues, they disagreed over a five-foot-wide strip of land on the east side of the fire hall. The strip is part of a private laneway that provides access from Taylor Avenue to other parcels of land Shindico continues to own behind the fire hall.
Again, the city threatened expropriation, and the matter went to a public hearing. Inquiry officer Michael Green conducted a two-day hearing, after which he concluded that “the intended expropriation is not fair or reasonably necessary.” Green recommended that Shindico keep the strip of land. He suggested the city did not need to access the fire hall through the laneway, but that if it did, it could expropriate an easement. In fact, expropriation wouldn’t be necessary: Shindico insists it “would have no problem” granting the city an easement.
But Winnipeg public service wasn’t interested in a compromise, and recommended to council that it not endorse the inquiry officer’s recommendation. The property and development committee concurred, as did the executive policy committee.
Should council follow the committees’ advice and ignore the inquiry officers’ recommendations, it will not be alone. Public hearings rarely constrain would-be expropriators, who must merely consider – but not abide by – inquiry officers’ recommendations.
Eric Todd, author of a comprehensive book on expropriation law, described the hearing process as producing “more heat than light.” Dismissing the hearing as a place “to let off steam,” lawyer Gaylord Watkins called it inherently wasteful and “a frustrating experience for most participants.” Lawyer Stephen D’Agostino went further, describing the public hearing as “a bit of a sham process.” D’Agostino has “never seen an expropriating authority decide not to expropriate based on the hearing.”
Advocates of public hearings defend the right to be heard as a matter of fundamental justice. But where is the justice in giving property owners an illusion of meaningful participation in the expropriation process? Psychological research tells us the perception – even if illusory – of control enables people to tolerate more pain. Is this what public hearings accomplish?
On Wednesday, Winnipeg city council will have the opportunity to confirm the value of public hearings. If it is unwilling to heed the recommendations of its inquiry officers, perhaps it is time to abandon the pretence of consultation.
— Elizabeth Brubaker is the executive director of Environment Probe and author of Expropriation in Canada: Discretion Masquerading as Law.
Editor’s note: On March 25, Winnipeg city council disregarded the inquiry officers’ recommendations and voted to proceed with the expropriations as planned.